Case Digest: In the matter of an application by JR38 for Judicial Review (Northern Ireland) [2015] UKSC 42

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The Supreme Court handed down its judgment on 1 July 2015 In the matter of an application by JR38 for Judicial Review (Northern Ireland) [2015] UKSC 42 before Lord Kerr, Lord Clarke, Lord Wilson, Lord Toulson and Lord Hodge.

On the 23rd and 26th of July 2010 the appellant (aged 14 at the time) was engaged in rioting at “interface areas” in parts of Derry on Bishop St and Fountain estate interface. The appellant brought the case after photographs of him engaged in rioting were published in two local newspapers, as part of the police led “Operation Exposure”.

Two issues arose in the appeal:

1. Did the publication of his image amounted to an interference with the appellant’s respect to a private life under article 8 of the European Convention on Human Rights and Fundamental Freedoms ("ECHR")?

2. If there was such an interference, was it justified?

Article 8 reads:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.On the issue of whether or not the appellant’s article 8 rights were engaged, three of the Justices agreed that because his image was captured while engaged in criminal activity in a public place, he could not have a reasonable expectation of privacy. However there was disagreement by two of the Justices on this issue. The risks of criminalization, stigmatization, his age, lack of consent and the publication of his photographs were all relevant factors that were considered.

Lord Clarke partially dissented on the question of whether Article 8.1 was engaged. On the one hand the appellant’s criminality during the riots was not an aspect of his private life that he was entitled to keep private. On the other hand, the act of photographing the appellant in the course of rioting did not deprive him of his right to prevent the police publishing the photographs. Nevertheless the fact the photographs were used for identification purposes swung in favour of it not engaging his article 8.1 right.

Lord Toulson disagreed with Lord Kerr that the conduct of the police amounted to an interference with the appellant’s article 8 right. However on the second issue, all of the Justices were in agreement that the interference was justified as a matter of public safety.

The appeal was dismissed.

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